Citation Nr: 0509418
Decision Date: 03/30/05 Archive Date: 04/07/05
DOCKET NO. 03-32 649 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Whether there was clear and unmistakable error (CUE) in a
June 1982 decision that denied service connection for the
cause of the veteran's death, to include whether new and
material evidence has been received to reopen a claim for
service connection for the cause of the veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Tenner, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1966 to May 1970
and from March 1974 to December 1977. The veteran died on
February [redacted], 1982. The appellant is the deceased veteran's
former spouse.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a September 2002 decision rendered by the
Winston-Salem, North Carolina Regional Office (RO) of the
Department of Veterans Affairs (VA). The appellant indicated
disagreement with that decision and, after being furnished a
statement of the case, filed a substantive appeal.
FINDINGS OF FACT
1. The appellant was married to the veteran from March 1970
until the time of the veteran's death on February [redacted], 1982.
The veteran's death certificate lists the primary cause of
death as gunshot wound to the head.
2. At the time of the veteran's death, service connection
was in effect for anal fissures and a lacerated left foot
scar, both rated as noncompensably disabling.
3. In June 1982, the RO denied the appellant's claim for
service connection for the cause of the veteran's death and
so notified the appellant; she did not initiate an appeal.
4. The appellant remarried on December [redacted], 1999. In a claim
received in February 2001 the appellant attempted to reopen
the claim for service connection for the cause of the
veteran's death.
5. The appellant essentially alleges that the RO failed to
consider service medical records from the veteran's second
period of service. At the time of the RO's June 1982
decision, military service from March 1974 to December 1977
was considered "void enlistment", and was not recognized as
a verified active duty service.
6. The appellant has not established, without debate, that
the correct facts, as they were then known, were not before
the RO in June 1982; that the RO ignored or incorrectly
applied the applicable statutory and regulatory provisions
existing at the time; or that, but for any such alleged
error, the outcome of the decision would have been different.
7. Evidence received since the June 1982 decision is new,
bears substantially and directly on the matter at hand, and
is so significant that it must be considered with all
evidence of record in order to fairly adjudicate the appeal.
8. Due to the appellant's remarriage, she is no longer
considered a "surviving spouse" for purposes of obtaining
VA benefits.
CONCLUSIONS OF LAW
1. The June 1982 decision that denied service connection for
the cause of the veteran's death is final. 38 U.S.C.A. §
7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302,
20.1103 (2004).
2. Clear and unmistakable error in the June 1982 denial of
service connection for the cause of the veteran's death has
not been established. 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. § 3.105(a)(2004).
3. Evidence received since the June 1982 rating decision is
new and material and the claim for service connection for the
cause of the veteran's death is reopened. 38 U.S.C.A. § 5108
(West 2002); 38 C.F.R. § 3.156(a) (2001).
4. The appellant may not be recognized as the veteran's
surviving spouse for purposes of VA benefits. 38 U.S.C.A. §§
101, (West 2002); 38 C.F.R. §§ 3.5, 3.50 (2004). Sabonis v.
Brown, 6 Vet. App. 426 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
The Veteran's Claims Assistance Act (VCAA), and its
implementing regulations, essentially eliminates the
requirement that a claimant submit evidence of a well-
grounded claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, and 5126 (West 2002); 38 C.F.R. § 3.102, 3.156, 3.159,
and 3.326 (2004). The VCAA and its implementing regulations
provide that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim, including obtaining
medical examinations or opinions if necessary.
The United States Court of Appeals for Veterans Claims
(Court) has concluded that the VCAA was not applicable where
further assistance would not aid the appellant in
substantiating his or her claim. Wensch v. Principi, 15 Vet
App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not
required to provide assistance "if no reasonable possibility
exists that such assistance would aid in substantiating the
claim"). In this case, by letter of May 2001, the RO
advised the appellant of the criteria for claims for service
connection for the cause of the veteran's death, and provided
an opportunity to submit any evidence pertinent to the claim.
She was further advised to identify any evidence or further
argument in support of her claim that the RO's decision in
1982 contained clear and unmistakable error (CUE).
Given the parameters of the law surrounding CUE claims (as
explained in more detail below), however, the duties to
notify and assist imposed by the VCAA are not applicable
where CUE is claimed, in Board decisions (see Livesay v.
Principi, 15 Vet. App. 165 (2001)), or in RO decisions (see
Parker v. Principi, 15 Vet. App. 407 (2002)). Moreover,
because the appellant has been notified of the laws and
regulations governing the CUE claim and reasons for the
denial of the claim, and all relevant evidence has been
associated with the record, any pre-VCAA duties to notify and
assist have been met.
Additionally, in view of the circumstances presented in this
case in which it is not the factual evidence that is
dispositive of the present appeal, but rather the application
of the law and regulations to the undisputed facts, the Court
has held that VCAA is not applicable. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001) (regarding claim for
recognition as surviving spouse for purposes of reinstatement
of death pension benefits, neither duty to assist nor duty to
notify provisions of VCAA are implicated when question is
limited to interpretation and application of a statute).
The claim is ready to be considered on the merits.
II. CUE in June 1982 RO Decision
Initially, in determining whether the June 1982 RO decision
that denied service connection for the veteran's cause of
death was clearly and unmistakably erroneous, the following
three-prong test is used: (1) either the correct facts, as
they were known at the time, were not before the adjudicator
(i.e., there must be more than a simple disagreement as to
how the facts were weighed or evaluated) or the statutory or
regulatory provisions extant at the time were incorrectly
applied; (2) the error must be undebatable and of the sort
which, had it not been made, would have manifestly changed
the outcome at the time it was made; and (3) a determination
that there was CUE must be based on the record and law that
existed at the time of the prior adjudication in question.
See Russell v. Principi, 3 Vet. App. 310, 313-4 (1992).
CUE is the kind of error, of fact or law, that when called to
the attention of later reviewers compels the conclusion, to
which reasonable minds could not differ, that the result
would have been manifestly different but for the error. Even
where the premise of the error is accepted, if it is not
absolutely clear that a different result would have ensued,
the error complained of cannot be, ipso facto, clear and
unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).
There is a presumption of validity to otherwise final
decisions. Where such decisions are collaterally attacked-
and a CUE claim is undoubtedly a collateral attack-the
presumption is even stronger. See Grover v. West, 12 Vet.
App. 109, 111-112 (1999); Daniels v. Gober, 10 Vet. App.
474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-384
(1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see
also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999),
expressly adopting the "manifestly changed outcome"
language in Russell. A disagreement with how the RO
evaluated the facts is inadequate to raise a claim of CUE.
Luallen v. Brown, 8 Vet. App. 92, 95 (1995).
In this matter, the veteran died as a result of a self-
inflicted gunshot wound to the head in February 1982. In
April 1982, the appellant, then the veteran's surviving
spouse, filed a claim for Dependency and Indemnity
Compensation or Death Pension by Widow and/or Child. The
appellant noted on her claim that she was not
claiming that the veteran's death was due to service. This
apparently was taken also as a claim for service connection
for the cause of death under 38 C.F.R. § 3.152 (1981).
Prior to denying the claim in June 1982, the RO was in
receipt of service medical records from the veteran's first
period of active duty service in the United States Marine
Corps from June 1966 to May 1970. The veteran's records do
not show complaints or treatment for depression, suicidal
ideation, or any other psychiatric disorder. At the time of
his death, service connection was in effect for an anal
fissure and a left foot scar. At the time of the June 1982
RO decision, the RO was also in receipt of a service record
from the United States Navy with respect to the veteran's
second period of service from March 1974 to December 1977.
The service record indicated that the "Character of
Service" was "None - Void Enlistment". The RO, in June
1982, denied the appellant's claim finding no relationship
between the cause of the veteran's death and a service-
connected disability.
Since the June 1982 decision, the appellant has submitted
copies of service medical records from the veteran's service
in the Navy, police reports from 1977 to 1980. The records
reflect that the veteran was treated in the U.S. Navy for
suicidal ideation and that he made three unsuccessful suicide
attempts. The police reports further document the successful
and failed suicide attempts. In an April 2004 Administrative
Decision, the RO recharacterized the veteran's service from
March 15, 1974 to December 16, 1977 from "Voided
Enlistment" to "Honorable".
The appellant contends that the June 1982 RO decision
contains CUE because the RO failed to consider relevant
service medical records from the veteran's second period of
service. Had the RO reviewed such records, she contends, it
would have found a relationship between the veteran's cause
of death and his service.
The Board has carefully considered the appellant's
contentions. As an initial procedural matter, the Board
notes that the appellant did not specifically claim
entitlement to service connection for the cause of the
veteran's death in 1982. However, the Board finds no error
in the RO's adjudication of such as pertinent regulation
provided that a claim for death pension would also be
considered to be a claim for death compensation or dependency
and indemnity compensation. 38 C.F.R. § 3.152 (1982).
Turning to the appellant's specific contentions, at the time
of the June 1982 RO decision, the veteran's second period of
service was characterized as "Void - Enlistment". Thus,
the veteran's character of service was not recognized for
purposes of entitlement to VA benefits. 38 C.F.R. § 3.1(d)
(1982) ("Veteran" means a person who served in the active
military, naval, or air service and who was discharged or
released under conditions other than dishonorable.)
Accordingly, as the veteran did not have recognized service
from March 1974 to December 1977, the Board finds no error in
the RO's failure to consider service records from this
period.
Additionally, the Board finds that the failure to consider
the unrecognized service does not constitute a grave
procedural error such as to vitiate the finality of the June
1982 decision. See generally, Hayre v. West, 188 F.3d 1327
(Fed. Cir. 1999), Cook v. Principi, 258 F.3d 1311 (Fed. Cir.
2001). The Board acknowledges the fact the veteran's second
period of service was recently recharacterized as
"Honorable". It has recently been determined that the void
enlistment was caused by recruiter fraud, and was not due to
action by the veteran. However, and as noted above, a
determination that there was CUE must be based on the record
and law that existed at the time of the prior adjudication in
question. As the evidence was received after the June 1982
decision, there can be no CUE in the RO's failure to consider
such evidence.
III. New and Material Evidence
In June 1982, the RO denied the appellant's claim for service
connection for the cause of the veteran's death. The
appellant was notified of the decision that same month but
did not initiate an appeal. As such, the June 1982 decision
is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a),
20.302, 20.1103.
In February 2001, the appellant filed a claim to reopen
service connection for the cause of the veteran's death.
Pertinent law and regulation provides that if new and
material evidence has been presented or secured with respect
to a claim which has been disallowed, the claim may be
reopened and the former disposition reviewed. 38 U.S.C.A.
§ 5108; 38 C.F.R. § 3.156(a).
Pursuant to 38 C.F.R. § 3.156(a), new and material evidence
means evidence not previously submitted to agency decision-
makers which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. [Parenthetically, the Board
notes that the regulations implementing the VCAA includes a
revision of 38 C.F.R. § 3.156(a). However, the revised
version of 38 C.F.R. § 3.156(a) is only applicable to claims
filed on or after August 29, 2001. See 66 Fed. Reg. 45620-
45632 (August 29, 2001). Hence, the Board will apply the
version of 3.156(a) in effect at the time of the September
2002 denial (culminating in the current appeal); that version
appears in the 2001 edition of Title 38 of the Code of
Federal Regulations.].
Thus, if the newly presented evidence is not "new," the
claim to reopen fails on that basis and no further analysis
of the evidence is required. Similarly, if "new" evidence
is not "material," in the sense that, when considered by
itself or in connection with evidence previously assembled,
it is not so significant that it must be considered in order
to fairly decide the merits of the claim, the claim to reopen
fails on that basis and the inquiry ends. If the evidence is
determined to be both new and material, VA reopens the claim
and evaluates the merits after ensuring that the duty to
assist has been fulfilled. 38 C.F.R. § 3.156.
In this matter, the evidence received since the June 1982, as
noted above, includes service medical records from the newly
characterized service from March 1974 to December 1977. The
records include treatment and reference to numerous suicide
attempts or gestures. Other evidence includes police reports
that document the veteran's suicide and prior unsuccessful
suicide attempts. This evidence is new, in the sense that it
was not of record at the time of the June 1982 decision.
Additionally, the evidence is clearly material to the claim
as it so significant that it must be considered in deciding
the merits of the claim.
Accordingly, the claim for service connection for the cause
of the veteran's death is reopened.
IV. Eligibility for VA Benefits
Dependency and indemnity compensation (DIC) may be awarded to
a surviving spouse upon the service-connected death of the
veteran. 38 U.S.C.A. §1310 (West 2002); 38 C.F.R. § 3.5(a)
(2004). Generally, the term "surviving spouse" means a
person of the opposite sex who was the spouse of the veteran
at the time of his death, and who lived continuously with the
veteran from the date of marriage to the date of his death,
and who has not remarried. 38 U.S.C.A. § 101(3); 38 C.F.R. §
3.50(b).
In this case, on a VA Form 21-686c, Declaration of Status of
Dependents, filed in June 2001, the appellant notified the RO
in that she had remarried on December [redacted], 1999. There is no
evidence that such remarriage has been terminated. See 38
C.F.R. § 3.55. Therefore, the appellant is no longer the
veteran's surviving spouse, and not a proper claimant, for
purposes of entitlement to DIC benefits for service
connection for the cause of the veteran's death. Id.
Accordingly, the appellant's claim must be denied. See
Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is
dispositive, not evidence, the appeal should be terminated
for lack of legal merit or entitlement); accord Luallen v.
Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App.
426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995).
ORDER
The appeal as to the claim of CUE in a June 1982 RO decision
that denied service connection for the cause of the veteran's
death is denied.
As new and material evidence has been received to reopen the
claim for service connection for the cause of the veteran's
death, to this extent only, the appeal is granted.
The appellant is not entitled to recognition as the veteran's
surviving spouse for purposes of VA benefits.
______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs